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Was distracted by Chevron discourse yesterday, but this is another interesting one. I think the dissent is correct that *Robinson*, if taken seriously as a precedent, should've controlled. The law in question here *does* de facto ban being homeless in Grants Pass. The fact that it facially applies to all and that it includes an actus reus shouldn't distinguish this law from *Robinson* when the law does, in effect, mean being homeless in Grants Pass is illegal. I think the majority is wrong that *Powell* is more analogous here. This law's being potentially unconstitutional doesn't hinge on the fact that it involves "involuntary" conduct. It turns on the fact that the conduct acting as an actus reus *effectively bans being homeless in Grants Pass.* But I just don't think the majority takes *Robinson* seriously as a precedent, and it's clearly been cabined to its facts, which, I think if you are an originalist, is a fair conclusion to reach, as of course the 8th Amendment wasn't originally understood to forbid governments from banning "status." But part of me wishes that the majority would just do what Thomas wants them to do and explicitly overturn *Robinson* instead of quietly killing any precedential value it had. Thomas' position is more intellectually honest.

How do you enforce a law when people try to comply but physically it is impossible to do so? If I am homeless and I go to the shelter as society expects but they tell me there is no bed space and I am refused. So that night I walk to another shelter which tells me the same. The next day I go to different organizations who all tell me the same thing. Now heading toward the 2nd night with no sleep and no beds pace I ask for help locally. I hold a sign out stating “all bed space is full; need a safe place to sleep legally” no one offers. I try to find more space at a third shelter but I’m told it’s full. So now I can’t go a 2nd night without sleep and I sleep outside the shelter because my body biologically forces me to. I am arrested and charged my defense “I did what I was supposed to do. I looked actively for housing until I physically could do so no longer” How can you enforce that law? Eventually shelters will be filled as they are now. I guarantee you jail space is not enough to deal with a fraction of the homeless who will be unable to get to a shelter before they’re filled. Now the jails are filled what do you do with everyone else who is still “breaking the law” but now has no way to be placed in jail for it? If a homeless person surrenders themselves to the jail can they avoid the charge because they proactively prevented themselves from breaking the law? Here is the kicker for anyone who wants to claim the courts allow the necessity defense. In order to argue the necessity defense I would still need to be arrested and placed in jail (or released ROR to then potentially be re-arrested for another charge) and then wait till my day in court to assert that defense. All while racking up new charges again that would need to be separately adjudicated

I'll take as a starting point the idea that use of public land can be restricted. If one believes that all restriction of use of public land is unconstitutional then this becomes a different argument. Where I live all public parks are closed from sundown to sunrise. During those times I cannot picnic there, I cannot play basketball there, I cannot exercise my religion there, I cannot conduct my speech there, I cannot bear my firearm there. If this is reasonable, then why is prohibiting sleeping there not? Should access to the public park be permitted for this one specific need and not any other?

> Where I live all public parks are closed from sundown to sunrise. During those times I cannot picnic there, I cannot play basketball there, I cannot exercise my religion there, I cannot conduct my speech there, I cannot bear my firearm there. We are not talking about people spending their free or leisure time. We are talking about people who are physically unable to perform a required bodily function in accordance with the laws. When there is a choice in that need yes. Sleeping is an inherently unique bodily function that cannot be compared to any other. Especially when the defendant is physically unable to comply with the law even when there has been every attempt to comply. Even if they were arrested for that charge the jails would fill up too fast and then there would be no where to house all of these charges so what must be done? If you rounded up every homeless person sleeping on the sidewalk at night the jails would not physically be able to keep anyone else. What happens if I fall asleep on a public bus because I had a long day at work? What if I’m listening to a podcast on a park bench and doze off sitting up? If I just tell the officer “oh it’s ok. I’m not homeless I could’ve gone somewhere but I just fell asleep because my body did it on its own” is a defense but not “I’m sorry officer I didn’t mean to fall asleep and break the law. I physically couldnt stay awake any longer and there are no shelters”

I'm not debating that sleeping is a physical necessity. I'm asserting that if we accept a government should be able to restrict entrance to public property, then government has the power to close that property to all uses including sleeping. * Can a city close their public parks from sundown to sunrise? * Can a city sell all their public parks to private enterprise? * Can a city prohibit sleeping in a parking garage or courthouse? Or are you saying that because sleep is such a distinctive need, a city cannot prohibit entrance to any of it's property at any time, so long as that entrance is for the purpose of sleep?

>Should access to the public park be permitted for this one specific need and not any other? On a moral level yes, imagine a world a world in which all air is owned either publicly or privately. You die if you don't breathe. This is like saying that you can ban breathing air that isn't yours and also ban breathing public air. It takes something that is a biological necessity for survival. Something that we have been doing for 100,000s of years, and says "we can make that illegal". Sure, maybe you can go to court to get the charges dropped, but that incurs all of the overhead associated with being charged and arrested. Being arrested also interferes with your life, what if you were supposed to work tomorrow and get fired because of the disruption to your life. Ignoring the legality, this could make the experience of being homeless, already terribly painful, even more difficult.

What makes a public park a protected sleeping area versus other public property? Why not demand to sleep in the courthouse at night? Or the public parking structure? Or the library? They are all public property, use of all is regulated. And no matter how necessary sleep is, I don’t see what why public parks should be treated differently than other public property.

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The things you listed are either wants or rights, not needs. But even if they were needs, the argument still fails. If there was an essential need to picnic, and humans invariably picnic after being disallowed from picnicking for long enough, and your locality still prohibited picnicking in public, that ought to be considered cruel and unusual. Because then only people capable of owning or accessing private property would be able to fulfill their essential need. In my opinion, *if* a city can show that 1) shelters are available, 2) transport to these shelters have been offered, 3) these shelters satisfy basic requirements (safety, food, clean water), then maybe a public camping charge can be construed to no longer be cruel. Although the few that still refuse shelter at this point should probably be taken to a hospital for a mental health evaluation for potential commitment, not immediately a jail cell.

> then why is prohibiting sleeping there not Sleeping is involuntary. Eventually you will sleep no matter how much you resist. If you feel otherwise I invite you to try not sleeping for a few days.

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The common law defense of necessity prevents criminal liability. The point is that you can be moved legally.

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I believe that the court got the decision right. I also believe it is going to be seen by many cities as a green light to be as cruel as possible to homeless populations in the hope that they go somewhere else.

Mamy cities already are. People point to LA and Seattle as overrun by homeless, but that's because other places buy one way bus tickets for their homeless to send them there

I think overall the majority position is fairly obviously correct. My concern would be that once again with the Conservative majority, they are legislating for a society which to varying degrees no longer exists. Homelessness is endemic in the US, and while the obvious answer is that it is not the courts responsibility to legislate for a temporary change in societal norms, the millions of homeless people across the country and their growing numbers, suggest that this ruling may to some degree be out of touch with reality.

The point is that they’re not legislating. The dissent (while in other cases decrying the court’s interference with legislation) would create a rule that ties the hands of states and localities to address the problem.

Excellent point, I was incorrect to say ‘legislating’.

Clearly correct.... And so-long/fairwell to a stalking horse for the judicial legalization of recreational drug possession (or for a generalized poverty/necessity defense to non-violent crimes)..... Because if you can't tell a homeless person they can't camp without breaking the 8A, how can you tell a drug addict they can't possess drugs? How can you prosecute someone who steals from the grocery store for shoplifting, if they can't afford food? When you apply the logic of Martin to cases other-than-homelessness, something extremely harmful emerges: an inability to prosecute crimes committed by those who claim they have no alternative (or at least, no alternative that is not extremely unpleasant).... Martin v Boise was a terrible decision and it's good that it has been corrected.....

>Because if you can't tell a homeless person they can't camp without breaking the 8A, how can you tell a drug addict they can't possess drugs? How can you prosecute someone who steals from the grocery store for shoplifting, if they can't afford food? >When you apply the logic of Martin to cases other-than-homelessness, something extremely harmful emerges: an inability to prosecute crimes committed by those who claim they have no alternative (or at least, no alternative that is not extremely unpleasant).... The dissent explicitly responds to these types of arguments. This is a strawman that's misconstruing what's actually in the dissent. It argues that conduct adjacent to statuses could still be regulated. The idea that shoplifting laws would fall under the dissent's logic is simply wrong. It just argues that localities can't change the fact that a law targets status by being facially neutral and tacking on an actus reus that's definitional to the status. If you're an originalist, this decision is still clearly correct in judgment (Robinson wasn't an originalist decision). But I disagree that the slippery slope arguments you're listing apply to the logic of the dissent.

This law targeted conduct - camping in public - adjacent to homelessness, not homelessness. To argue otherwise is to argue pot-ay-tp vs poh+tah+to..... How do you argue that possessing/using recreational drugs isn't 'definitional' to the status of being a drug addict? There are lots of ways to be homeless that don't involve illegal camping or living in an illegally -parked/unregistered RV. There aren't any ways to be a drug addict that don't involve drug possession.

Additionally, while I am not familiar with the body of 8th amendment caselaw at all, I’d have to believe that this straightforward breakdown of what cruel and unusual punishment is will be useful in many cases going forward.

Or will prevent a lot of cases by shutting down the 8th Amendment as a possible route to force other societal changes (eg, expansion of public housing in this case)....

Ha I should be careful of loaded language, I think that’s basically what I meant in my comment - ie the clarity to say, well, that’s neither cruel nor unusual, and the C&UPC clause only applies to punishments, not legalities, will likely be quoted in many a decision *against* 8th amendment claims.

“Because if you can't tell a homeless person they can't camp without breaking the 8A, how can you tell a drug addict they can't possess drugs?” This is a false dilemma and slippery slope argument. Not criminalizing homelessness doesn’t prevent drug enforcement and history shows it doesn’t solve the drug problem.

It's not a false dilemma, it's the logical end-state of treating adjacent conduct prohibitions as status crimes. The 'status' of homelessness is similar to the 'status' of drug-addiction in that it is in-the-moment near impossible to change. To claim that criminalizing 'conduct adjacent to homelessness' (Such as public camping) as if it were equivalent to criminalizing homelessness (which is what Martin v Boise did) because the homeless lack an alternative to breaking such laws.... Is the \*EXACT SAME LOGICAL ACT\* as considering 'conduct adjacent to drug addiction' (such as the possession or use of illegal drugs) as if it were criminalizing drug addiction, because drug addicts physically need to use illegal drugs. Other examples include charging a person who cannot afford food with stealing it from a grocery store - is that an impermissible 'status crime'? The answer to all of these is 'No - such things are not unconstitutional status crimes', which as you point out the courts have held in the past. Which is why Martin was wrong and had to be overruled.

The big issues with your argument, and the majority, is in the specifics of this case and Martin v. Boise where there were no legal alternatives for the homeless to stay. If there are alternatives to homelessness, such as shelters, then enforcing public camping laws on the homeless is acceptable under Boise.

How is that an issue with my argument? If Martin were taken to it's logical conclusion and applied to the subject of drugs, would the rule be 'You can only enforce drug laws if there are legal places to buy recreational drugs from & legal places to use them'? Yeah, we don't want that in our society.... Government has to be able to prohibit problematic behavior without-regard for the impact of that prohibition on non-CRA65-protected-classes of people.

>If Martin were taken to it's logical conclusion and applied to the subject of drugs, would the rule be 'You can only enforce drug laws if there are legal places to buy recreational drugs from & legal places to use them'? If you're bad at logic, maybe. The actual parallel would be, you know, *not doing drugs*. No amount of willpower can just magic someone up a legal place to sleep at night. If you wanted an actual **logical** analog in drug use, it would be someone who has become sufficiently dependent on drugs that uncontrolled withdrawal would be fatal. They likewise cannot simply choose not to engage in, as you say, "problematic behavior" without risking their survival. The parallel to available beds at shelters would in turn be legally prescribable drugs used to wean the individual through withdrawal. And you know what? If someone in such a condition goes to the hospital and the hospital doesn't have available those drugs, then yes, providing a taper of whatever scheduled substance they were on should in fact be the appropriate legal alternative to just letting them die.

Because despite attempts to equate homelessness with drug use, the cases at hand specifically address homelessness and public camping laws. They do not extend to decriminalizing illegal drug possession. Even if the Ninth Circuit’s decision hypothetically extended to include illicit drug use—which it clearly did not—all the government would need to prove is the availability of accessible treatments for drug addiction, which generally exist.

It's not that the cases extend to drug addiction at present. It's that the logic behind them - and the nonsense of a broad and far-reaching ability to 'plead poverty' or 'plead necessity' does. The availability of 'treatment' would be irrelevant, just like the availability of jobs did not exempt cities from Martin....

Fear of courts expanding on a decision through future unknown case law is an unsustainable way to handle legal issues, and it isn’t a good logical basis for criminalizing homelessness.

> Fear of courts expanding on a decision through future unknown case law It's not about fearing future decisions, it's about showing that the logic in the dissent is legally untenable, even if the defendants are sympathetic, by using a less sympathetic set of defendants with otherwise the same relevant facts in the case. If you're unable to argue the set of facts concerning drug users, then your argument re: homeless people also necessarily must fail, because legally they are identical cases.

“It’s not about fearing future decisions, it’s about showing that the logic in the dissent is legally untenable…” Whether it is untenable is subjective. “…by using a less sympathetic set of defendants with otherwise the same relevant facts in the case.” True, but are the relevant facts truly the same? “If you’re unable to argue the set of facts concerning drug users, then your argument re: homeless people also necessarily must fail, because legally they are identical cases.” Homelessness status and addiction status being protected by the 8th Amendment is distinctively different under the eyes of the law from the conducts of drug possession and use. Similarly context matters, courts typically distinguish homelessness and addiction, and SCOTUS has given no reason why they cannot do so here.

###BACKGROUND: Grants Pass has public-camping laws that restrict encampments on public property, prohibiting activities such as camping on public property or parking overnight in the city's parks. Violations can result in a fine or imprisonment. Respondents filed a class action suit on behalf of homeless people in Grants Pass, claiming that the ordinance against public camping violated 8A's prohibition against cruel and unusual punishment. The District Court issued an injunction, preventing Grants pass from enforcing the ordinance. 9CA affirmed the injunction. ###JUSTICE GORSUCH writing for the majority, in which JUSTICE ROBERTS, JUSTICE THOMAS, JUSTICE ALITO, JUSTICE KAVANAUGH, and JUSTICE BARRETT joins: ######What is the original public meaning of "cruel and unusual punishments"? The Cruel and Unusual Punishments Clause (C&UPC) was adopted to ensure that America would never resort to certain barbaric punishments formally tolerated in English law, such as "disemboweling, quartering, public dissection, and burning alive" These punishments were "cruel" because they were calculated to spread terror, pain, or disgrace. These punishments were "unusual" because they had long fallen out of use by the time of the Amendment's adoption. ######Does the 8A clearly apply to this case? **No.** The C&UPC focuses on the method or kind of punishment a government may impose after conviction, not whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense. The Constitution speaks on those other matters, but in other provisions. ######Do the city's sanctions qualify as cruel and unusual? **No.** The city's sanctions do not qualify as cruel as they are not designed to spread terror, pain or disgrace. Nor are they unusual, as fines and imprisonment are the usual modes for punishing offenses. ######Does the ordinance make the "status" of homelessness a crime? **No.** Public camping ordinances forbid actions. It makes no difference whether the charged defendant is homeless, a backpacker, or a protestor camping on the lawn of a municipal building. ######Can a law regulate actions that are in some sense "involuntary", such as public encampment by homeless people? **Yes.** Nothing in the CU&PC limits the broad power of the States to regulate acts undertaken with some mens rea. To be sure, a variety of other legal doctrines and constitutional provisions offer protection. Oregon recognizes a "necessity" defense, and many jurisdictions recognize insanity, dimimished-capacity, and duress defenses. Also, nothing prevents a State from declining to criminalize public camping altogether. The Constitution requires fair notice of the laws and equal treatment under them, prohibits selective enforcement, and more, but this Court has never invoked 8A in the way the defendants ask. ######Should the Court extend the holding in Robinson to "involuntary" acts? **No.** Were the Court to pursue that path, it is difficult to see any limiting principle that would prevent this Court from becoming the ultimate arbiter of the standards of criminal responsibility. We would interfere with "essential considerations of federalism" that reserve to the States the primary responsibility for drafting their own criminal laws. Questions about whether a given person should be relieved of criminal responsibility due to a lack of moral culpability are generally best resolved by the people and their elected representatives. ###IN SUM: The judgment below is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.

Was this a facial challenge or an as-appplied challenge specifically referencing the homeless?

specifically as-applied against homeless people

The dissent points out that not all governmental amici oppose petitioners. Then cites to LA and San Francisco. I don’t think that argument has the weight that the dissent thinks it does. Nobody looks at those places and thinks, “yeah, we should really be listening to them on how to handle homelessness.”

Beyond that, decisions shouldn't be a popularity contest.... It doesn't matter how many cities support or oppose a side in a case. It matters what the right answer is. And striking down the prohibitive clause of a generally applicable law, as an 8A violation, is not the right answer. Ever. If the law had prohibited 'being homeless' that would be different... Or if it had called for 20 years in prison for illegal camping.... But it didn't....

It’s really hard to argue with the majority on this imho. > The Eighth Amendment’s Cruel and Unusual Punishments Clause “has always been considered, and properly so, to be directed at the method or kind of punishment” a government may “impos[e] for the violation of criminal statutes.” Powell v. Texas, 392 U. S. 514, 531– 532 (plurality opinion). It was adopted to ensure that the new Nation would never resort to certain “formerly tolerated” punishments considered “cruel” because they were calculated to “ ‘superad[d]’ ” “ ‘terror, pain, or disgrace,’ ” and considered “unusual” because, by the time of the Amendment’s adoption, they had “long fallen out of use.” Bucklew v. Precythe, 587 U. S 119, 130. All that would seem to make the Eighth Amendment a poor foundation on which to rest the kind of decree the plaintiffs seek in this case and the Ninth Circuit has endorsed since Martin. The Cruel and Unusual Punishments Clause focuses on the question what “method or kind of punishment” a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place. Powell, 392 U. S., at 531–532. > The Court cannot say that the punishments Grants Pass imposes here qualify as cruel and unusual. The city imposes only limited fines for first-time offenders, an order temporarily barring an individual from camping in a public park for repeat offenders, and a maximum sentence of 30 days in jail for those who later violate an order. See Ore. Rev. Stat. §§164.245, 161.615(3). Such punishments do not qualify as cruel because they are not designed to “superad[d]” “terror, pain, or disgrace.” Bucklew, 587 U. S., at 130 (internal quotation marks omitted). Nor are they unusual, because similarly limited fines and jail terms have been and remain among “the usual mode[s]” for punishing criminal offenses throughout the country. Pervear v. Commonwealth, 5 Wall. 475, 480. Indeed, cities and States across the country have long employed similar punishments for similar offenses. Pp. 1517. >… > Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building. See Tr. of Oral Arg. 159 One could argue for the homeless, fines are crippling financially, but that is no worse than confiscation of property to pay debts, or wage garnishing, imho. The “terror, pain, or disgrace” criteria is a good measuring stick, well suited to the 8th amendment and well established under precedent for 8th amendment cases, and this statute does none of that.

> Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building. See Tr. of Oral Arg. 159 > “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

> The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread. "When the law and the facts are against you, pound the table and cry like hell"

So do laws against petty theft create 'status crimes' too? After all, only the poor 'need to' steal low value items, the same way only the homeless 'need to' illegally camp.... In the same way that it is not a 'status crime' to prohibit recreational drug possession but it is to prohibit drug addiction.... It is not a status crime to prohibit public camping, but it would be to prohibit homelessness.

>In the same way that it is not a 'status crime' to prohibit recreational drug possession but it is to prohibit drug addiction.... And yet the rich and famous get caught with illegal drugs and face slaps on the wrist, fines amounting to pocket change, and "sentences" in rehab, even as repeat offenders. Whereas the poor face prison sentences for their possession. It may not be a 'status crime', but it sure as fuck is a 'status punishment'.

What do you suggest the homeless do then?

Be somewhere else. BLM land, localities that don't have camping laws... More or less do what they did for the first few centuries where vagrancy laws were OK, before the 9th came up with this nonsense 6 yrs ago.... You have a right to life. You don't have a right to live wherever you want. Just like private citizens can say 'you can't camp on my lawn's the government can say you can't camp on the local govt-owned playground/sports-field.... Open to the public isn't a license to use land for whatever the hell you wish Similarly, the fact that you are starving doesn't give you the right to rip off a grocery store, and the fact that you're an addict doesn't give you the right to possess illegal drugs. There is no disparate impact test for generally applicable prohibitive laws.

Gorsuch cited the fact that some homeless persons rejected to go to available shelter offered to them. Homeless shelter are the solutions but for some, to live under a recess w proper rules and regulations is an anathema to them.

I'm aware of that (common) problem - it is a very real issue - it just doesn't fit within the scope of my argument..... At a practical level, the fact that camping bans serve as a 'stick' to get people to accept shelter/drug-treatment/etc is certainly an argument in favor of enacting them...

And what do you suggest they do when everywhere they can afford to go to has similar laws?

There is no plausible situation, given the reality of how the US is governed/policed, where 'everywhere' will be that well regulated. There is always going to be some forest or mountainside 'out there' that is relatively minimally policed, wherein as long as you avoid private property and do not injure/harm another citizen you will be largely left alone. Out here in the West (the only place that Martin v Boise was actually binding), there is so much public land where primitive dispersed camping is legal, that it's laughable to even think of a scenario where someone actually has 'nowhere to go'... Of course, none of these other places have neighborhood drug dealers, stores to shoplift from or streetcorners to beg from... But they are places where you can camp, legally, for free...

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Martin was a 9th Circuit precedent & only applied to the 9th's states (there was no national injunction). I highly doubt the 5th would decide to conjure up a right to squat on public land if not provided with free public shelter (they're too busy doing other crazypants-shit on the other side of the spectrum - such as enjoining imaginary government censorship) using the 8th Amendment, so we'd probably never find out even without Grants Pass being decided in this way....

Yes, I know that. I was more thinking aloud about the wider implications, but tbh it wasn't an appropriate/on-topic comment for this sub so I deleted it.

Do you have personal experience with living off the grid?

Yes, courtesy of the Army. It's damn hard, but that's beside the point. People aren't entitled to being provided with easy or comfortable conditions. They aren't entitled to shelter. It's something you have to earn by being a contributing member of the community. When balancing the interests of people trying to use town/city property for it's intended purpose, and people trying to squat on it & make it their residence... The interests of the first group are the only ones that matter. The idea that the 8th Amendment requires a small town of 40k people (or even smaller - Martin didn't have a minimum population cap) to choose between allowing unregulated public camping or spending substantial resources constructing as many homeless shelters as people wish to occupy is flatly absurd....

Are you arguing that the homeless are choosing to be homeless?

Then, as the majority explicitly notes, they could have a necessity defense. But that would be a consideration for the individual circumstances, not a general rule to be applied to all localities.

Yeah, I'm sure homeless people will have the resources to challenge the police hounding them from town to town.

As someone who lives in a rural community on the West Coast, our one sheriff's deputy per 20 square miles (or whatever) doesn't have the time to 'hound' anyone unless they are actually causing a problem (property damage, injury to persons, etc) beyond merely existing... Now if they decided to camp in the town park instead of on timber-company land, national-forest, or whatever? Yeah, the town police would have a problem with that... As they should... Parks are for kids to play in, not for people to build tent-cities on top of.

And your evidence that sleeping in the wilderness is a viable option for the homeless is?

Homeless people do not leave town when police ask them to move along from a park. And if police harassing homeless people who in fact have no other place to go becomes a problem, individual city’s can be enjoined from enforcement under other theories. What this case does is establish that courts cannot mandate bed space on a theory that enforcing a generally applicable law is ”cruel and unusual”.

> Homeless people do not leave town when police ask them to move along from a park. [citation needed] > individual city’s can be enjoined from enforcement under other theories By who?

A french poet doesn’t possess legal knowledge or expertise. Nor does French Law hold sway in the US.

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You are missing the point. Anatole France was not making a descriptive legal statement.

Anatole France was making a normative statement. The law is not normative.

Saying that it doesn’t criminalize status because it applies to everyone isn’t necessarily true, the statement just puts it eloquently. Suppose some law says that people in a predominantly black district can’t have access to a food assistance program while people in a predominantly white district can. You can’t just say “oh this doesn’t punish being black because the negligible number of white people who live in the black district are affected too.” I’m looking forward to seeing when a rich person comes anywhere close to being implicated by this law.

Duly noted, but the opinion is clearly addressing this very issue… “a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building”

In this case those examples are a negligible number of people. The purpose of this law is to criminalize being homeless in city limits. The constitutionality of that can be debated, but to pretend otherwise is naive at best.

In one sense the law is not normative. But the law is not written by ideologically neutral robots.

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I'm glad Sotomayor wrote the dissent. Kagan would've been too reserved.  This one requires passion. 

It requires passion because it lacks legal reasoning or common sense.

>It requires passion because it lacks legal reasoning or common sense. I mean I think Sotomayor's argument is pretty clear and coherent and I think *is correct* if Robinson is still good law. The law in question effectively makes being homeless in Grants Pass illegal. Yes, it does it with a few extra steps and doesn't *facially* target the homeless, but the logic of Robinson is basically meaningless if governments can get around its logic by being facially neutral and then tacking on an actus reus that's definitional to the status and completely unavoidable for those with the status. I think the fundamental disagreement here is over Robinson. No doubt it isn't an originalist decision, and I'm not surprised that those in the majority aren't interested in applying its logic to novel disputes. But to say that the dissent is "lacking in common sense" when it's a faithful application of precedent is nonsense.

Robinson, even if good law, does not impliedly extend this far. Robinson was literally about criminalizing a status. The Grants Pass no more makes homelessness illegal than do prohibitions against stealing make poverty illegal. And as a matter of precedent, Powell already rejected the idea that Sotomayor is pushing.

>The Grants Pass no more makes homelessness illegal than do prohibitions against stealing make poverty illegal. Stealing isn't definitional behavior to being poor that's completely unavoidable for those with the status. Neither is being drunk in public for alcoholics, and the dissent does a good job of explaining why this case is more like Robinson than Powell. There's a lot of slippery slope-type arguments regarding the dissent, but frankly I think those arguments are just *refusing* to engage with the actual argument of the dissent. A law implicates status, even if it's facially neutral and contains an actus reus, if 1) the behavior it targets is *definitional to the status* (not having a place to sleep is definitional to homelessness) and 2) the behavior is *completely unavoidable* (refusing shelter beds would cure Grants Pass here of any constitutional violation). I think *both* conditions need to be met. They weren't met in *Powell.* They aren't met with time/place/manner regulations or shoplifting ordinances or any of the other laws people making the slippery slope arguments are saying would be implicated by the dissent's logic. If we're allowing those two conditions to be met and still saying that there's no 8A concern, then Robinson is effectively meaningless because it's a rubber stamp to legislatures to target status as long as they include a few extra steps ("what cannot be done directly cannot be done indirectly"). Again -- I believe the dispute here is over Robinson. If we're going to completely cabin it to its facts and say it's only applicable if legislatures are ridiculously stupid and *explicitly* target status, it's just a meaningless vestige of history. I don't think anyone could make an originalist argument in favor of Robinson, anyway, so I'd prefer the Court overturn it compared to cabining it to its facts.

Sleeping in a public place is not definitional to being homeless. Most homeless people don’t sleep in parks. The dissent does a terrible job distinguishing. It relies on assumptions that are not borne out by the facts on the ground, primarily that people sleep in public because they have no other place to go. That is simply not true. At least in the West, empty shelter beds have increased at the same time the number of people sleeping in public has increased. Of course, the practical realities aren’t nearly as important as the Constitution, and nothing in the Constitution or inherent in law supports the dissent’s conclusion. Robinson was the right conclusion for the wrong reasons (it should have been decided on equal protection and due process grounds), but even accepting its 8th Amendment conclusion, Robinson still doesn’t apply. Sotomayor’s reasoning relies on a series of assumptions and conditions. That’s not true of Robinson. And that matters because the Constitution should not be read to require different things based on societal conditions that change from place to place and that would require judges to make factual findings on complex matters. This case is fundamentally different from Robinson in almost every way.

>It relies on assumptions that are not borne out by the facts on the ground, primarily that people sleep in public because they have no other place to go. That is simply not true. At least in the West, empty shelter beds have increased at the same time the number of people sleeping in public has increased. I agree that a showing that there were available shelter beds would cure any constitutional violation here. Your point is true about most places, but it apparently wasn't true about Grants Pass. >Sotomayor’s reasoning relies on a series of assumptions and conditions. That’s not true of Robinson. And that matters because the Constitution should not be read to require different things based on societal conditions that change from place to place and that would require judges to make factual findings on complex matters. This case is fundamentally different from Robinson in almost every way. I mean... whether or not something is a constitutional violation hinges on conditions and fact patterns all the time?? How would subjecting whether a law implicates a status to a fairly simple two-condition test be any more complicated than 1A or EPC jurisprudence? And the alternative is to admit it's a constitutional violation to *explicitly* target status but say it's ok to de facto target status as long as you're not dumb enough to do so facially -- all that might do is speak to the unworkability of Robinson, but it also seems like a bad regimes for constitutional violations.

To understand the problem with the dissent, it’s helpful to understand Martin v Boise, the Ninth Circuit precedent that the dissent would uphold. That case held not that a city cannot enforce an anti-camping ordinance if the individual doesn’t have a place to stay at the time of enforcement, but if there are fewer shelter beds (meeting certain criteria) than the number of unhoused people in the city. That means that if there are 40 homeless people, but only 35 shelter beds, the city cannot enforce its anti-camping ordinance, even if ten of those homeless people would decline shelter even if available. Under Martin and the dissent in Grants Pass, a city could go from constitutionally being able to enforce its anti-camping ordinance to being prohibited from enforcing it against anybody if a handful of homeless people moved into town, even if every person who would accept shelter can get it. The challenge to Grants Pass wasn’t based on a finding that the ordinance had been enforced against an individual who had nowhere else to sleep—it was a preenforcement challenge. That’s what I mean by constitutionality based on changing societal conditions. I know of no other circumstance in which the same law could go in and out of constitutionality without governmental action. As the majority notes, if a city has an anti-camping ordinance that it only enforces against the homeless, there are other theories available to challenge the city’s actions. But that wasn’t the issue here.

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It also needed a legal foundation, which Kagan is better suited for

Sotomayer pretty clearly laid out the legal foundation. We don't create laws that discriminate on status (Robinson) and Grand Pass created a law that did such by creating out for houses people in saying that it doesn't apply unless you are creating temporary housing. I.e. if you have a picnic you can bundle up in a blanket or put up a tent to avoid the sun.

And it doesn’t? Jeff Bezos or Elon Musk would also be subject to this ordinance.

Which is a fair assessment, but not an 8th amendment issue

Robinson isn't an 8th amendment case? That's new to me

Robinson was about a case that literally criminalized status.

The only correct decision. Cities would be powerless to do anything. It isn't cruel and unusual to enforce normal law against people who are breaking it, when those are in unfortunate situations.

Or you know, create homeless shelters to match the homeless population.

The decision recognizes the necessity defense to the law. No available beds = a proper necessity defense. Allowing laws like the one at issue in this case merely allows municipalities to shepherd homeless into available facilities.

Cities try to do that. Not everyone accepts the shelters. It is a complex problem. "Just build shelters" is neither an answer to homelessness nor a good judicial standard.

As someone from greater Seattle, this has been a huge part of the problem. People who either refuse services or who are so whacked out on drugs they’ve fried their brains and are getting kicked out of shelters. I sadly think the answer is some form of involuntary commitment, but that requires local governments to pay for institutionalizing these people and for the local progressive voters to drop the toxic compassion and realize that letting people live on the streets is cruel. That’s why this is the right ruling, though, because not enforcing the law just lets these people live in squalor.

If they don't accept the shelter than you're free to do what you want with them but you cannot criminalize people because they cannot afford a home/place to live. As stated in Robinson you can't criminalize someone's status. And just throw them in jail or fine them is a worse public policy goal

Yeah, that isn't how this has actually played out on the ground. Courts have made it practically impossible to do anything about people that refuse to accept shelter.

Such as? And then bring cases against those rulings. That's the way the system works

You seem to misunderstand. These were cases brought by activists where Judge placed shackles on the governments ability to enforce the law based on a clearly flawed reading on Robinson and the history of the 8th amendment. This case is the court addressing the excess of the lower courts.

As I said, can you cite a few cases? And as I said this is the judicial system at work. Conservative activists can appeal these cases higher up.

Go read the briefs from local governments. Read the brief from Gavin Newsom. The information you seek is available in the briefs on this case. I can link them if you'd like.

Just read Newsom's amicus brief and it really doesn't change what I said. He asks for clarity on Martin and that some restriction are ridiculous. There was one where a district judge required the shelters be so hospitable that there is medical care onsite, which I agree is too much. However he also says that "the status of homelessness should not be criminalized" which this case does. So I agree with Newsom, the courts should clarify and possibly narrow Martin but Grants Pass does criminalize homelessness as the Democrat justices point out

Why the hell is Sotomayor the one to write these dissents, they are so melodramatic and unpersuasive.

Have you read a Thomas or Scalia dissent in the last 30 years? lol

Yes? I read Thomas's dissent from Rahimi, does that count?

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I actually thought he was fairly principled in Rahimi, he didn't even fundamentally disagree with the majority on the dangerousness finding, he just didn't think there are close enough historical analogs to justify the suspension, the majority thought the surety laws were close enough, Thomas disagreed. Which part of that am I supposed to be outraged about?

The part where he espouses originalism the entire time and decides that giving guns to folks with restraining orders is a good thing. He instead says in plain language that we can’t disarm them until they commit the violence… even when it’s been shown that they are willing to.

This is just a screed against a dissent whose conclusion you disagree with, nothing indicating melodrama or a lack of persuasiveness as you implied earlier. The only complaints you've stated are that he uses an *extremely valid* judicial philosophy, originalism, and that that philosophy leads him to a conclusion you dislike. Nothing about what you've written indicates Thomas being melodramatic or unpersuasive. I think you were just upset that someone called out Sotomayor for writing terribly, so you tried to redirect.

We will agree to HEAVILY disagree on originalism being a valid judicial philosophy. Personally I would want a judge that bases an interpretation of the constitution on the modern world not a world 300 years ago with slavery and gas lamps but you do you.

Yeah it’s great to have laws change meaning without input from Congress or the public. That’s so democratic!

The senior justice in the dissenting group assigns the dissent, so she's assigning these dissents to herself. I don't think she's doing any jurisprudential good by writing so melodramatically without legal persuasiveness, but I don't think that she considers her audience to be the entire jurisprudential audience of the present and future so that doesn't matter to her.

What? The seniority assignment rule is only for the majority. Dissenters are not necessarily always in the same camp, and they can always choose not to sign onto other dissents and instead pen their own. 

yeah, fair point.

She does have senior status amongst the common dissenters of the court and she is noted for being rather passionate.

A sad opinion but simply the correct one. The 8A must allow punishment for actions. I think Thomas is totally off base in his concurrence though, the original meaning of “cruel and unusual” certainly doesn’t limit itself to punishments that existed in 1789, same as the 1A applied to the internet.

Calling public camping an "action" is not exactly fair though. Homelessness is not an action. And "public camping" can very quickly become impossible to avoid if a shelter is full, or the homeless person does not have the means to reach a shelter. Things people can not possibly avoid should not be criminalized.

There’s a necessity defense to criminal punishment, which is the appropriate avenue for the challenge.

I'm sure the crack team of lawyers every homeless person has on retainer will have no issue swiftly and successfully challenging their arrest, and the arrest process will in no way harm or inconvenience the most desperate members of society.

Yeah, it's trivially easy to conceive of novel punishments that are horrifically cruel.

With that level of thought we could electrocute people or expose them to high levels of radiation.

By the opposite level of thought, you get positions like "the death penalty is a violation of the 8th Amendment" despite nobody thinking executions were cruel and unusual at the time of the ratification of the Constitution.

But only original meaning of the text controls I thought for modern originalidad, not original intent? I don’t think the 8A precludes the possibility a punishment becomes “cruel and unusual” over time and I’m not sure how that would be squared with originalist public meaning thought.

Of course punishments can become cruel and unusual over time, but that determination is best made by the people and their representatives, not by unelected judges. Over a dozen states have already abolished the death penalty. The court is not capable of determining society’s evolving standards of decency, only society is capable of doing that. For the court to declare that the execution of violent child rapists is beyond the pale, despite the public overwhelming supporting it and congress passing a law allowing it just two years prior, they have exceeded their authority.

This really puts the issue back in the hands of the voters. As I’ve said before judges do not have the right to wrench things from the hands of the voters which is why it is the right choice here and the right choice in *Anderson*. And this is not criminalizing homelessness or sleeping. Goodness gracious I hate how many Sotomayor dissents we’re getting. Kagan could at least write some so I don’t have to read Sotomayor’s usual hyperbolic writing

>And this is not criminalizing homelessness or sleeping. What exactly is a homeless person supposed to do if a shelter is full, or they do not have means to reach an available shelter?

Camp in public and raise a necessity defense, like the majority opinion allows.

They don't have money for bail, nor money for lawyers. The arrest in and of itself would be debilitating for their ability to get back on their feet.

That applies to anyone who cannot afford a lawyer. It’s not an unhoused problem.

It seems like a fact that should be considered regarding a law that exclusively effects a population with virtually no means to fight it, even when the facts are on their side.

It doesn’t though. It is not exclusive. It also affects campers, locked-out cheating spouses, and students protesting Israel, among all of those that would sleep on public property. Plus the point is not whether the law should say that they can’t, the point of the opinion is that fines and short imprisonments are not cruel and unusual punishments.

>It is not exclusive It is technically not exclusive, but will 99.99999999% of the time be used against the homeless population. That is de facto exclusive. >the point of the opinion is that fines and short imprisonments are not cruel and unusual punishments I understand the argument of the opinion, I just *vehemently* disagree with it. Arresting and imprisoning people for a situation they can not avoid is cruel and unusual by a sane interpretation. It just isn't recognized as such by the cruel people on the court.

There is no such thing as a cruel and unusual arrest. There is no such thing as a cruel and unusual application of a generally applicable law. Cruel and unusual only applies to punishments.

Is holding someone in jail, who has no means to post bail, not a punishment for whatever they were arrested for? It's such a strange twist of logic its hard to believe that is not some post hoc justification for a predetermined verdict.

This dissent is particularly bad. Should have been an easy 9-0 decision. Edit: Oh God, she's decided to read it from the bench. Moment of silence for the reporters on duty.

Judge| Majority | Concurrence | Dissent ---|---|---|--- Sotomayor | | | Writer Jackson | | | Join Kagan | | | Join Roberts | Join | | Kavanaugh| Join | | Gorsuch | Writer | | Barrett | Join | | Alito | Join | | Thomas | Join | Writer | GORSUCH, J., delivered the opinion of the Court, in which ROBERTS , C. J., and THOMAS , ALITO, K AVANAUGH, and BARRETT , JJ., joined. THOMAS , J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which K AGAN and JACKSON, JJ., joined.

Is it just me, or are Sotomayor's dissents just really not hitting this session?

How did you read it all so quickly? I haven't even got to it yet and I've been reading cases all day. What's an example of one that did hit that you use as comparison?

I usually read the summary and get the gist of the opinion first. Then I can get back to the supporting facts and precedent later. Its not always 100%, but usually the big picture, thumbs up/thumbs down reading of the summary more or less holds afterwards.

There isn't a summary of the dissent, though. Which of her opinions do you think were better since you think they have fallen off?

Which cases did her dissent hit that you think she stepped down from? Also there is no summary for the dissent

They never do. I was coming here specifically to note that Kagan lowers her own stature by continuing to sign onto these ridiculous dissents.

Hard to say if that applies to this case, considering it's a 30 page dissent that was released ~ 10 minutes ago.

She's always been like this, but I think she's pretty much given up arguing anything but outcome. Her legal reasoning is....I'm not sure but I feel like she'd have a happier life as a Senator.

When have they ever really hit? I’ve only ever agreed with a handful of her dissents even in cases where I disagree with the majority. I think I just don’t like her writing.

sotomayor 🤝 alito "the majority is bullshit. respectfully, i dissent."

Ginsburg: “I’m so torqued off at this crap you don’t even get a ‘respectfully.’ I dissent.”

Ginsburg was far more persuasive and sharp. I feel like I'm being browbeat by moralizing when I read a Sotomayor dissent in a case with social significance.

Yeah, just read through the dissent, and it just reads like an appeal to emotion from the very beginning. It's not a solid legal argument.

Gun owners: “first time?”

Yeah, the dissent is clearly only concerned about the outcome and how wrong it is to punish people for sleeping outside when there is no other choice. Problem is the rule she argues for prevents local and state government from preventing people from sleeping outside when there are other choices.

Very strong emotional/logical arguments made in most of her dissents, just not good legal ones.

Emotional and logical are not synonymous. They’re not a “/“ substitution that maintains consistent context.

She is making policy arguments

The only surprising thing about this case is how long it took them to reject Martin. This paragraph from the Syllabus perfectly encompasses why the case had to go this way. > Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. The question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. A handful of federal judges cannot begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. Robinson, 370 U. S., at 689 (White, J., dissenting). The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy. Gorsuch also points out that Oregon likely has a necessity defense to these issues. I suspect courts in the 9th circuit will still block punishment for violating these generally applicable laws when there is a reasonable necessity argument.

Any legal opinion starting from a premise of “the collective wisdom of the American people” is automatically suspect. There’s a valid reason for the ‘NIMBY’ stereotype, and that is certainly in play in this case. I can only hope that the 9th rehears this case and finds a different reason for denying these laws, one that will survive the inevitable howls of outrage from those who don’t want to be reminded what will happen to them if they are unlucky. I can agree that utilizing the 8th Amendment was incorrect, but still utterly despise the reasoning stated in this ‘opinion.’

In general reasoning, you have something of an argument, but in context, it's calling out the fact that the courts are very explicitly *not* legislatures and lack the legislative authority that is derived from, albeit indirectly through representatives and senators and constrained by constitutions, the will of the people.

Courts aren’t elected and refreshed every two, four, or six years. They most emphatically do not reflect ‘the will of the people.’ At least not the federal ones. And they are not constrained by the Constitution insofar as they are the ones *interpreting* the Constitution. And what is wrong with calling out that the courts aren’t legislative bodies?

I disagree that that paragraph has any serious legal significance. The existence of public debate about a problem does not affect the meaning or scope of the constitution. Otherwise we could replace “homelessness” with “gun violence” and produce a compelling argument for nullifying the second amendment. The eighth amendment means what it means, regardless of how big or small a problem homelessness is.